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Category: Articles

Article

Privacy Pretexts

Rory Van Loo, Boston University School of Law and Affiliated Fellow, Yale Law School Information Society Project

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Tech companies like Amazon, Meta (Facebook), and Alphabet (Google) wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by…

Dec 2022

Article

Rhetoric and the Creation of Hysteria

Ediberto Román, Professor of Law, Florida International University & Ernesto Sagás, Professor of Ethnic Studies, Colorado State University

The anti-immigrant tenor of the debate leading to the need for a wall, the frustrations relating to it, and its resulting political opportunism are not limited to the United States. Throughout the Western Hemisphere and Europe, political leaders are using similar rhetoric of the immigrant “other” in order to rally the base, deflect criticism, and…

Dec 2022

Article

Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd

Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law & Margaret S. Williams, Adjunct Faculty, Johns Hopkins University

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was…

Nov 2022

Article

Remote Work and the Future of Disability Accommodations

Arlene S. Kanter, Laura J. and L. Douglas Meredith Professor of Teaching Excellence (2005–07), Syracuse University; Bond, Schoeneck and King Distinguished Professor of Law (2011–13); Director, Disability Law and Policy Program; Director, International Programs, Syracuse University College of Law

When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. In the past decade, sophisticated computer applications and programs have become commonplace. These advances in technology, have enabled millions of employees to work from home since the onset of…

Nov 2022

Article

Discredited Data

Ngozi Okidegbe, Associate Professor of Law & Assistant Professor of Computing and Data Science, Boston University

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions because they are…

Nov 2022

Article

Has the Alien Tort Statute Made a Difference?: A Historical, Empirical, and Normative Assessment

Christopher Ewell, J.D., Yale Law School (2022); Oona A. Hathaway, Gerard C. and Bernice Latrobe Smith Professor of Law, Yale Law School & Ellen Nohle, J.S.D. Candidate, Yale Law School (2023)

The Alien Tort Statute (ATS), which allows aliens to file civil suit in U.S. courts for violations of the law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however,…

Oct 2022

Article

Antidiscrimination and Tax Exemption

Alex Zhang, Law Clerk, United States Court of Appeals for the Ninth Circuit. J.D., Yale Law School; Ph.D., Yale University

“The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy—including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But…

Oct 2022

Article

Resurrecting Arbitrariness

Kathryn E. Miller, Clinical Assistant Professor of Law, Cardozo Law School. Staff Attorney, Equal Justice Initiative, 2012–2015

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently…

Sep 2022

Article

Getting to Death: Race and the Paths of Capital Cases After Furman

Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law and Professor of Epidemiology, Columbia University; Garth Davies, Associate Professor of Criminal Justice, Simon Fraser University; and Raymond Paternoster, Professor of Criminology and Criminal Justice, University of Maryland

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment…

Sep 2022

Article

Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era

John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School and Director of the Cornell Death Penalty Project

The protracted and (somewhat) ongoing debate over whether lethal injection—in some or all of its forms—is cruel and unusual punishment under the Eighth Amendment is the newest variation on the question of whether a particular form of capital punishment is inhumane and cruel. The history of capital punishment in the United States over the last…

Sep 2022

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